NWCDN Members regularly post articles and summary judgements in workers’ compensations law in your state.
Select a state from the dropdown menu below to scroll through the state specific archives for updates and opinions on various workers’ compensation laws in your state.
Contact information for NWCDN members is also located on the state specific links in the event you have additional questions or your company is seeking a workers’ compensation lawyer in your state.
The Medicare Secondary Payer Act requires primary payers, including workers’ compensation carriers, to reimburse Medicare for payments it made for healthcare for which the primary payer was responsible. Many carriers have reported seeing an increase in secondary payer recovery activity by Medicare, particularly with regard to demands for reimbursement of services that bear no relation to the compensable injury.
For example, on a low back sprain/strain claim, the carrier may receive a demand for reimbursement of services for treatment of COPD, diabetes, or other ordinary diseases of life. In other cases, the provider’s bill may list a compensable diagnosis code but no treatment was actually provided for that condition. Finally, in some instances treatment may have been provided for both related and non-related conditions, yet the carrier receives a demand for the full amount.
It appears that in many instances Medicare is not making an initial determination about whether and to what extent the services it paid for were actually for the compensable injury. If the beneficiary has a prior workers’ compensation claim, Medicare simply sends a demand letter. InCIGA v. Burwell, a federal district court case out of California, decided January 5, 2017, the court rejected Medicare’s argument that the primary payer is responsible for both the related and unrelated conditions when the provider combines the services into a single charge. According to the court, Medicare must attempt to apportion the charges between related and non-related services.
The court also held that Medicare is bound by state law in determining whether the insurance carrier is required to reimburse Medicare. The Fifth Circuit Court of Appeals reached the same conclusion inCaldera v. Ins. Co. of the State of Pa., decided in 2013. Therefore, if Medicare contends that a disputed condition for which it paid for treatment is related to the compensable injury, the proper forum for resolving that dispute would be the administrative dispute resolution process provided by the Texas Workers’ Compensation Act. So far, however, it does not appear that Medicare has attempted to invoke the Division’s dispute resolution process.
The Division’s involvement would be welcomed to help address the problems carriers are having with Medicare reimbursement claims. In 2014, then Commissioner Rod Bordelon wrote a letter to Medicare to address a related problem in which Medicare would not pay for medical services because the Medicare beneficiary had a previous workers’ compensation claim. Topics to be addressed in a new letter may include facilitating a process to better identify the compensable injury and related services before a blanket demand letter is sent, and, in the event of a disagreement, clarifying the process for resolving that dispute. For example, do Medicare or Medicare/Medicaid managed care providers meet the definition of a “health care insurer” under section 409.0091 such that they are required to follow Labor Code section 409.0091 and submit a DWC-026 healthcare insurer reimbursement form? --James Loughlin, Stone Loughlin & Swanson, LLP
By now, those of you reading this blog know that in order for an injury to be compensable in South Dakota, the injury must arise out of and be in the course of the employment. Pretty straight forward, right?
Not so much.
While South Dakota adopts the “coming and going rule, establishing that an employee is not covered for purposes of workers’ compensation while coming from and going to work, the law has also established a ‘gray area’ regarding what is, and what is not. covered. Three seminole cases in South Dakota address this topic: Norton v. Deuel Sch. Dist. 2004 S.D 6; Fair v. Nash Finch Co., 2007 S.D. 16; and Terveen v. South Dakota Dept. of Transp. 2015 S.D. 10. These cases make it clear that a fact investigation into a workers’ compensation claim must include an analysis of minute details of the claim.
In Norton, the SD Supreme Court found that personal activities involving self-care, such as eating, resting, smoking, or using bathroom facilities should be considered in the course of employment. In Fair, the Court found that an employee’s deviation from work duties does not ‘automatically constitute departures from employment, but may … be found insubstantial.’” Fair was injured while she was exiting Family Thrift after a brief deviation from her usual direct route to her vehicle. The Court found that while it was reasonable to expect employees to exit the premises after work, it was also reasonable to expect Fair to engage in personal shopping after her shift had ended. Thus, the Court found that mere fact that an employee deviates from their work does not preclude a finding that the injuries are compensable.
Insubstantial deviations have been defined as those “largely the kind of momentary diversions which, if undertaken by an inside employee working under fixed time and place limitations, would be compensable under the personal comfort doctrine.” Arthur Larson, Larson Workers’ Compensation § 17.06[3] (2014). If someone engaged in an act for personal comfort, they do not leave the course of employment unless the extent of the departure is so great that an intent to abandon the job temporarily can be inferred. Id. at §21. In Terveen, the Court adopted the majority rule around the nation, finding that an employee who has made a personal side-trip has to ‘get back on the beam’ before being deemed to have resumed the business trip. Id. § 17.03[5]. Additionally, the Court noted that the deviation cannot be substantial.
Now you are probably wondering, what information you need to find out during an investigation. Some information you need to know will include finding out what the employee was doing at the time of the injury; did the employer authorize, expressly or impliedly, that running personal errands was acceptable; was the employee on their typical route home, did they get lost, or, perhaps, were they stopping for food? These cases are very fact specific so be sure to take the time to gather all the facts you need to make a determination.
As always, we are here and happy to help. Give us a call anytime.
The Alabama Court of Civil Appeals recently released its opinion in Kirby v Jacks Family Restaurants, LP.In that case, the plaintiff filed claims for workers’ compensation benefits, retaliatory discharge, and the tort of outrage against Jacks, its insurance fund, its third party administrator, and its case management company. All of the defendants filed Motions to Dismiss the outrage claim and the trial court granted them. The trial court further certified the judgment on the dismissal of the outrage claims to be a final judgment for purposes of appeal. However, the Court of Appeals held that even though the Order contained language certifying it as final, such certification was not appropriate in the case because the plaintiff’s workers’ compensation and retaliatory discharge claims were so intertwined with the outrage claims. The Court of Appeals noted that the plaintiff relied on facts and circumstances surrounding her injury and her termination to support her claim for the tort of outrage, and that she would rely on the same set of underlying facts in her remaining claims. The Court of Appeals held that it is improper for the trial court to certify a dismissal as "final" when at least some of the issues presented in the claim still pending in the trial court are the same as the issues presented in the claims addressed in the judgment, and repeated appellate review of the same underlying facts would be a probability in the case. Therefore, the Court of Appeals dismissed the plaintiff’s appeal as having been taken from a non-final judgment.
My Two Cents:
When tort claims accompany a workers’ compensation claim, it is common for the trial court to either sever the claims completely and assign new case numbers or keep the claims together and hold separate trials. When the trial court merely orders separate trials, the claims remain joined in one civil action, and any order disposing of anything less than all of the claims and all of the parties will generally not be considered a final order for purposes of appeal. The trial court may include language in an order certifying the order as final (as in this case), but sometimes, that is still insufficient to render an order final for purposes of appeal. On the other hand, if a tort claim is severed from a related workers’ compensation case (assigned a separate civil action number), an order granting summary judgment would be a final order for purposes of appeal. Therefore, it is often wise to ask the trial court to sever an outrage claim, rather than only asking for separate trials.
About the Author
This article was written by Charley M. Drummond, Esq. of Fish Nelson & Holden, LLC. Fish Nelson & Holden is a law firm located in Birmingham, Alabama dedicated to representing employers, self-insured employers, and insurance carriers in workers’ compensation cases and related liability matters. Drummond and his firm are members of The National Workers’ Compensation Defense Network (NWCDN). The NWCDN is a national and Canadian network of reputable law firms organized to provide employers and insurers access to the highest quality representation in workers’ compensation and related employer liability fields. If you have questions about this article or Alabama workers’ compensation issues in general, please feel free to contact the author at cdrummond@fishnelson.com or (205) 332-3414.
The Supreme Court recently released its opinion in Foster v North American Bus Industries, Inc. in which it reversed the trial court’s summary judgment in favor of the employer on a retaliatory discharge claim. The employer, NABI is a bus manufacturer in Anniston that has what it refers to as a "no fault, points based attendance and absenteeism policy". Under the policy, NABI assigns points to each absence or tardiness. Foster worked for NABI as a Harness Technician and alleged that she sustained an injury in July 2012. Foster went to the hospital and reported the alleged workplace injury and NABI told the representative at the hospital that Foster’s injury was not work-related. Foster was evaluated and treated at the hospital and given a work/school absence form excusing her from work. Foster missed some time from work and was subsequently terminated for violation of NABI’s absenteeism policy. Foster then filed an action for retaliatory discharge against NABI. NABI moved for summary judgment, which the trial court granted, and Foster appealed.
On appeal, the Supreme Court found that Foster had presented a prima facie case of retaliatory discharge, and that the burden of proof should have been shifted to NABI to present evidence that Foster’s employment was terminated for a legitimate reason. NABI argued that its absenteeism policy was followed in all instances, whether the employee had a work-related injury or not. NABI offered evidence that it had terminated 44 employees for violating the same policy and that it had not made any exceptions to this policy. However, the Supreme Court noted that there was evidence before the trial court that NABI had made an exception to the policy on prior occasions and that those exceptions, which dealt with the method of delivering a medical excuse note, created a genuine issue of material fact that precluded summary judgment. Specifically, the Supreme Court found that Foster introduced sufficient rebuttal evidence in support of her position that NABI’s stated reason for terminating her employment was pretextual.
About the Author
This article was written by Charley M. Drummond, Esq. of Fish Nelson & Holden, LLC. Fish Nelson & Holden is a law firm located in Birmingham, Alabama dedicated to representing employers, self-insured employers, and insurance carriers in workers’ compensation cases and related liability matters. Drummond and his firm are members of The National Workers’ Compensation Defense Network (NWCDN). The NWCDN is a national and Canadian network of reputable law firms organized to provide employers and insurers access to the highest quality representation in workers’ compensation and related employer liability fields. If you have questions about this article or Alabama workers’ compensation issues in general, please feel free to contact the author at cdrummond@fishnelson.com or (205) 332-3414.
The Alabama Court of Civil Appeals recently released its opinion in Frederick Roosevelt Dunning, Jr. & Janice Dunning Sandifer v. Lula Mayhew, in which it determined Roosevelt and Lula were married at common law. Although the Alabama legislature abolished common law marriage in Alabama effective January 1, 2017, any common law marriage that existed prior to that date is still valid. The Court of Appeals reiterated that a common law marriage requires proof by clear and convincing evidence of capacity to marry; a present mutual agreement to permanently enter into a marital relationship to the exclusion of all other relationships; public recognition of the relationship as a marriage; a public assumption of the marital duties; and cohabitation. The Court of Appeals further stated that while there was conflicting evidence presented at trial concerning the second two elements, the trial court is tasked with making credibility determinations and resolving conflicting evidence and that the appellate courts may not disturb the trial court’s findings in that regard as long as they are supported by substantial evidence.
My Two Cents:
The issue of common law marriage comes up frequently in workers’ compensation death benefits cases. Interestingly, as this case points out, a party must prove a common law marriage by clear and convincing evidence, whereas the standard to recover workers’ compensation benefits is generally a preponderance of the evidence. Nevertheless, an appellate court will not re-weigh the evidence on appeal, so the trial court’s findings of fact are generally final. The trial judge is in the unique position of being able to assess the credibility of the witnesses, and the appeals courts cannot substitute their own judgment in that regard.
About the Author
This article was written by Charley M. Drummond, Esq. of Fish Nelson & Holden, LLC. Fish Nelson & Holden is a law firm located in Birmingham, Alabama dedicated to representing employers, self-insured employers, and insurance carriers in workers’ compensation cases and related liability matters. Drummond and his firm are members of The National Workers’ Compensation Defense Network (NWCDN). The NWCDN is a national and Canadian network of reputable law firms organized to provide employers and insurers access to the highest quality representation in workers’ compensation and related employer liability fields. If you have questions about this article or Alabama workers’ compensation issues in general, please feel free to contact the author at cdrummond@fishnelson.com or (205) 332-3414.
On August 1, 2016, a new federal law, The Federal Civil Penalties Inflation Adjustment Act Improvements Act of 2015, went into effect which required all federal agencies to adjust their monetary penalties to account for inflation. One such agency, the Occupational Health & Safety Administration (OSHA), increased its maximum penalty for "serious", "other than serious", and posting requirements violations to $12,675 per violation, and its maximum penalty for willful or repeated violations to $126,749 per violation. For the last year, all citations issued by OSHA have been subject to the "new" higher penalties. However, it seems that OSHA may have put the cart ahead of the horse, and as a result is charging violators more than the law actually allows.
OSHA, like all federal agencies, gets its rule making and enforcement authority from its authorizing statute, and that authorizing statute generally supercedes subsequent laws like The Federal Penalties Inflation Adjustment Act Improvements Act. The problem for OSHA is that the Occupational Safety & Health Act of 1970 (OSH Act) has not been amended to allow for the higher penalties. Under the OSH Act, OSHA cannot issue penalties higher than the levels set way back in 1990, which are up to $7,000 for "serious" violations, and up to $70,000 for repeat/willful violations.
My Two Cents:
The discrepancy between the statutory caps under the OSH Act and the current fine levels creates a situation that is ripe for litigation. Employers are likely on the winning side of that battle, especially under the current, more "business friendly" federal administration. It is probably only a matter of time before a court strikes down the "new" penalties as unauthorized. When that happens, OSHA may very well have to start issuing refunds.
About the Author
This article was written by Charley M. Drummond, Esq. of Fish Nelson & Holden, LLC. Fish Nelson & Holden is a law firm located in Birmingham, Alabama dedicated to representing employers, self-insured employers, and insurance carriers in workers’ compensation cases and related matters. If you have questions about this article or OSHA citations in general, please feel free to contact the author at cdrummond@fishnelson.com or (205) 332-3414.
Independent medical review (“IMR”) has survived another challenge in court. On June 14, 2017, the California Supreme Court denied a petition for review regarding the Third District Court of Appeal’s decision inRamirez v. WCAB (2017) 10 Cal.App.5th 205.
The applicant raised constitutional challenges to IMR, claiming that IMR violates both the California Constitution and the United States Constitution. The court rejected each of the petitioners’ challenges and upheld the constitutionality of IMR.
The petitioners argued that IMR violated the California Constitution’s separation of powers and due process clauses. The court embracedStevens v. WCAB to reject this argument. In Stevens, the court noted that Article XIV, Section 4 of the California Constitution vests the legislature “with plenary power,unlimited by any provision of this Constitution, to create, and enforce a complete system of workers’ compensation, by appropriate legislation.” It found, however, that the constitution’s separation of powers and due process clauses yield to Section 4: the separation of powers clause does so expressly, whereas the due process clause excludes amendments “as to the subject matter of the new provision.” Relying on theStevens court’s findings, the court held that IMR did not violate these constitutional clauses.
The petitioner also argued that IMR conflicted with Section 4 of the due process clause since Labor Code section 4610.6(i) restricts the ability of appellate courts to review IMR determinations. TheRamirez court, however, “perceive[d] no conflict.” It noted that Section 4 requires that all WCAB decisions are “subject to review by the appellate courts [. . .].” It also noted that section 4610.6(i) only prohibits appellate courts from making a determination contrary to “determination of the independent medical review organization.” The petitioner argued that section 4610.6(i)’s language does not permit a court of appeal to review the Board’s decision as required by Section 4. The court opined, however, that section 4610.6(i) does not “impair[] the ability of the appellate courts to review decisions of the Board,” as an applicant may petition a court for review on grounds enumerated in section 4610.6(h). For this reason, the court held that IMR did not conflict with Section 4.
Lastly, the petitioner argued that IMR “strip[ped] him of his right to a substantive appeal” as an appellate court could not make a determination contrary to IMR. The court rejected this challenge by reference toStevens. The Stevens court noted that due process requires that a state provide someone “sufficient notice and opportunity to be heard” before “depriv[ing] them of a property or liberty interest [. . .].” It found that IMR presented a low “risk of erroneous deprivation of [medical] services” to applicants and that the government had a compelling interest when it established IMR. As such, theStevens court concluded that an applicant “is afforded ample process.” Agreeing withStevens’s conclusion, the court in Ramirez held that “the [IMR] process in its entirety provides sufficient due process protections” to applicants.
This is the second district to reject a constitutional challenge to IMR and the second time that the California Supreme Court has refused to review an appellate court’s decision. As it stands, IMR looks as though it is here to stay.
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by Jessie Zaylia, Partner
On April 26, 2017, the Third District Court of Appeal issued its decision in City of Jackson v. Workers’ Compensation Appeals Board (Rice) resolving the question whether “heritability and genetics” may be properly considered to apportion causation for a disability caused by a degenerative disease. (No. C078706, publication pending). The court answered the question in the affirmative.
In City of Jackson (Rice), the applicant police officer filed a claim for his disability caused by a cervical degenerative disc disease. The qualified medical examiner found the applicant suffered a cumulative neck injury and initially apportioned 25% causation to “heritability and genetics.” In a supplemental report, however, the QME changed the apportionment to 49%. In support, the QME cited three medical studies that found genetics to be “a significant causative factor in cervical spine disability [. . .].” In response to the applicant’s petition for reconsideration, the Workers’ Compensation Appeals Board’s disregarded the QME’s apportionment and ordered an unapportioned disability award for the applicant. The Third District granted the City of Jackson’s petition for writ of review and annulled the Board’s decision.
The court’s ruling in City of Jackson (Rice) is notable in two respects. First, the court held that Labor Code section 4663 permits consideration of an applicant’s genetics when apportioning causation in a degenerative disease case. The court dismissed the Board’s concern that “apportioning causation to genetics opens the door” to apportioning causation to “impermissible immutable factors.” It cited two previous rulings where the Board permitted such apportionment “though it may not have used the term ‘genetics.’”
Second, the court did not require an inquiry into the applicant’s familial medical history to justify the apportionment. Rather, the published medical studies that the QME relied on were substantial medical evidence in and of their own right to justify apportionment at 49%. The medical studies “indicated that genetics or heredity was a majority factor in all cases of degenerative disc disease,” “unless there [wa]s a clear traumatic injury.” In light of this, the court found that an inquiry into the applicant’s familial medical history was “unnecessary.”
City of Jackson (Rice) will undoubtedly assist defendants in developing non-industrial apportionment for their claims. The case highlights the importance of raising the issue of genetics when presenting an apportionment defense. It also underscores the importance of using peer-reviewed medical journal articles during med-legal cross-examinations as well as within requests for reporting so that doctors can render conclusions based on substantial, industry-established grounds for apportionment.
Written by: Elizabeth Ligon and Bruce Hamilton
The North Carolina Court of Appeals left the Industrial Commission scrambling when it issued its September 20, 2016 Opinion in Bentley v. Jonathan Piner Construction, holding the plain language of N.C. Gen. Stat. § 97-84 was violated when the Commission based its opinion and award on an opinion issued by a deputy commissioner who was not present at the original hearing and did not hear the evidence. The defendants in Bentley petitioned the Court for a rehearing, which was granted. On July 18, 2017, the Court of Appeals issued a new decision that superseded and replaced their prior decision. In its new Opinion, the Court held that Plaintiff was barred from raising this issue as a defense because he failed to raise the issue before the Commission.
Following the release of the new Bentley decision, Senate Bill 489 was signed into law by Governor Roy Cooper on July 20, 2017. As part of the new legislation, § 97-84 was revised to allow the Commission to assign another deputy to decide a case and issue an award if the deputy that appeared at the hearing and heard the evidence was no longer available. The new § 97-84 reads as follows:
“§ 97‑84. Determination of disputes by Commission or deputy.
The Commission or any of its members or deputies shall hear the parties at issue and their representatives and witnesses, and shall determine the dispute in a summary manner. The Commission shall decide the case shall be decided and issue findings of fact issued based upon the preponderance of the evidence in view of the entire record. The award, together with a statement of the findings of fact, rulings of law, and other matters pertinent to the questions at issue shall be filed with the record of the proceedings, within 180 days of the close of the hearing record unless time is extended for good cause by the Commission, and a copy of the award shall immediately be sent to the parties in dispute. The parties may be heard by a deputy, in which event the hearing shall be conducted in the same way and manner prescribed for hearings which are conducted by a member of the Industrial Commission, and said deputy shall proceed to a complete determination of the matters in dispute, file his written opinion within 180 days of the close of the hearing record unless time is extended for good cause by the Commission, and the deputy shall cause to be issued an award pursuant to such determination. If the deputy or member of the Commission that heard the parties at issue and their representatives and witnesses is unable to determine the matters in dispute and issue an award, the Commission may assign another deputy or member to decide the case and issue an award.“
RISK HANDLING HINT: The new legislation is effective and applies to claims pending on or after the effective date of the act. The legislative fix is intended to resolve any potential dispute over the Commission’s ability to reassign a file to a different Deputy when the hearing Deputy is unable to issue an opinion and award. This is an important legislative fix, since it will eliminate the need to retry cases before a second Deputy when the case had previously been tried before the original Deputy Commissioner. Retrying cases in this manner would have created significant additional litigation costs, created significant confusion between which transcript (the first hearing, the second hearing or both hearings) would be used during any appeal to the Full Commission or Court of Appeals and was not necessary given that the Full Commission is the ultimate finder of fact in Workers Compensation claims.
